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

Supreme Court brief1986

Ask Donna

What actually matters in this document.

Text

Nos. 84-495 and 84-1379 Suprems Court, U.S.

IN THE

Supreme Court of the United

OCTOBER TERM, 1985

RICHARD THORNBURGH, et ai.,

- Appellants

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, PENNSYLVANIA SECTION, et ai.,

Appellees

EUGENE F. DIAMOND, et ai.,

7 Anpellants

ALLAN G. CHARLES, et ai.,

Appellees

C...

handled

—

a |

—_

ied

On Appeal from the United States Courts of Appeais

for the Third and Seventh Circuits

BRIEF AMICI CURIAE OF

THE AMERICAN MEDICAL ASSOCIATION,

THE AMERICAN ACADEMY OF FAMILY PHYSICIANS,

THE AMERICAN ACADEMY OF PEDIATRICS,

THE AMERICAN PSYCHIATRIC ASSOCIATION,

THE ASSOCIATION OF

AMERICAN MEDICAL COLLEGES AND

THE AMERICAN COLLEGE OF OBSTETRICIANS

AND GYNECOLOGISTS IN SUPPORT OF APPELLEES

Of Counsel:

Kirk B. JOHNSON BENJAMIN W. HEINEMAN, JR.*

AMERICAN MEDICAL CARTER G. PHILLIPS

ASSOCIATION VINCENT F.. PRADA

535 N. Dearborn Street 1722 Eye Street, N.W.

Chicago, Illinois 60610 Washington, D.C. 20006

(312) 645-4600 (202) 429-4000

R. MIcHARL MILLER . NEWTON N. MINow

AMERICAN ACADEMY OF Jack R. Breric

FAMILY PHYSICIANS One First National Plaza

1740 West 92nd Street Chicago, Illinois 60603

Kansas City, Missouri 64114 (312) 853-7000

(816) 333-9700 SwLey & AUSTIN

Counsel for the Amici Curiae

* Counsel of Record

| Additional Counsel Listed on Inside Cover |}

WILSON - Eres Printine Co., Inc. - 789-0096 - WasHiINGToN. D.C. 20001

STEPHAN E. LAWTON

Prerson, BALL & Dowp

1200 - 18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Jor. I. KLBIn

Onek, Kier & Farr

2500 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

Josern A. Keyes, Jr.

ASSOCIATION OF AMER'°AN

QUESTIONS PRESENTED

Amici American Medical Association, et al., will ad-

dress the following issues:

1. Whether Pennsyivania impermissibly infringes the

woman’s right of privacy by requiring her physician to

communicate to her a specified litany of information con-

cerning abortions and the abortion procedure.

2. Whether Illinois impermissibly infringes the wom-

an’s right of privacy by requiring her physician to in-

form her that a prescribed method of birth control causes

“fetal death.”

3. Whether Pennsylvania impermissibly infringes the

woman's right of privacy by requiring her physician to

disregard the emotional and psychological effects of the

abortion technique on the woman and to select the tech-

nique that provides the fetus with the greatest chance

of survival, even though that technique may pose a

greater health risk to the woman.

4. Whether Illinois impermissibly infringes the wom-

an’s right of privacy by imposing criminal! sanctions on

a physician for failure to comply with a vague standard

of care te protect a fetus based on either the “possibil-

ity” that a fetus is viable or that a fetus is “known to

be viable.”

5. Whether Pennsylvania’s “second-physician” re-

quirement for post-viability abortions contains a suffi-

ciently clear emergency exception to comply with this

Court’s helding in Ashcroft v. Planned Parenthood, 462

U.S. 476 (1983).

6. Whether Pennsylvania impermissibly infringes the

woman’s right of privacy by requiring her physician to

supply the State with reports concerning every abortion,

which include descriptions of the bases for certain med-

ical judgments.

(i)

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................-------------00-00-0

SUMMARY OF ARGUMENT .....00000000...ee eee eee

ARGUMENT

I. THIS COURT HAS ESTABLISHED A DOC-

TRINAL FRAMEWORK FOR IMPLEMENT-

ING A WOMAN’S PRIVACY RIGHT TO

MAKE A PERSONAL MEDICAL TREAT-

MENT DECISION ABOUT TERMINATION

OF A PREGNANCY IN CONSULTATION

WEEE GO ED crcceecenecessccnsssesenccssnenenetnensane

II.

The Fundamental Privacy Right Arises In

The Context Of A Medical Treatment Deci-

sion

State Interference With The Woman's

Choice Between Abortion And Childbirth Or

With The Woman’s Relationship With Her

Physician Triggers Searching Judicial Ex-

amination Pursuant To The Compelting

State Interest Test

. The Compelling State Interest Test In The

Abortion Context Has Three Distinct Ele-

ments All Of Which Must Be Satisfied If An

Infringing Law Is To Be Valid

THE STATE LAWS AT ISSUE IN THESE

APPEALS ARE UNCONSTITUTIONAL

Pennsylvania’s Informed Consent Provisions

Are Unconstitutional

Illinois’ Informed Consent Provision Is Un-

constitutional

TABLE OF CONTENTS

C. The Illinois And Pennsylvania Provisions

That Require Physicians To Use The Abor-

tion Technique That Will Most Likely Pre-

serve Fetal Life Are Unconstitutional........

D. Pennsylvania’s Second-Physician Require-

ment Must Contain An Exception For Emer-

BOE BIRGTUIGD o.ccececcee-ccesseccseroccesecscnenseasessee

E. Pennsylvania’s Abortion Reporting Require-

ment Is Unconstitutional .......................... a

CONCLUSION ..............-.--0--00-00+-00- jalintiiennigeeiecernniticiccanaiisination

TABLE OF AUTHORITIES

Cases Page

Addington v. Texas, 441 U.S. 418 (1979)........ v—_ 21

Aptheker v. Secretary of State, 378 U.S. 500

RL Eee ES en TY oa 20

Beal v. Doe, 432 U.S. 438 (1977) ......................... 11, 16, 38

Bellotti v. Baird, 443 U.S. 622 (1979)... daialaal 11, 13, 41

Bellotti v. Baird, 428 U.S. 132 (1976) ..0000000.... 11

Board of Regents v. Roth, 408 U.S. 564 (1972)... 9

Brown v. Board of Education, 347 U.S. 483

ES Ne Cae es na 21

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.),

cert. denied, 409 U.S. 1064 (1972) .......00 23, 24

Cantwell v. Connecticut, 310 U.S. 296 (1940)... 20

City of Akron v. Akron Center for Reproductive

Health, Ine., 462 U.S. 416 (1983) 20. passim

Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104

Cal. Rptr. 505 (1972) (en bane) 0. 24

Colautti v. Franklin, 439 U.S. 379 (1979) _6, 7, 11, 12, 13,

14, 16, 34, 38, 39, 40, 41, 42, 43

Connecticut v. Menillo, 423 U.S. 9 (1975) .... ..... 11, 12

Coyle v. Smith, 221 U.S. 559 (1911) 0 9

D. Ginsberg & Sons v. Popkin, 285 U.S. 204

AEE Serer Oe aa ids 41

Doe v. Bolton, 410 U.S. 179 (1973) 13, 14, 16, 38

Edelman Vv. Jordan, 415 U.S. 651 (1974) 28

Eisenstadt v. Baird, 405 U.S. 438 (1972) 6, 10, 31

Garcia Vv. San Antonio Metropolitan Transit Au-

thority, U.S. , 105 8. Ct. 1005 (1985). 9

Griswold v. Connecticut, 381 U.S. 479 (1965) 5-6, 10, 31

Harris Vv. McRae, 448 U.S. 297 (1980)... 11, 15, 16,17

H.L. Vv. Matheson, 450 U.S. 398 (1981) 11, 38, 41

Katz v. United States, 389 U.S. 347 (1968) 21

Lochner v. New York, 198 U.S. 45 (1905)... 9

Loving V. Virginia, 388 U.S. 1 (1967)... 10

Maher v. Roe, 432 U.S. 464 (1977)... 11, 16

McDonald v. Thompson, 305 U.S. 263 (1938)... 41

Meyer Vv. Nebraska, 262 U.S. 390 (1923)... 9

Miami Herald Publishing Co. v. Tornillo, 418 U.S.

REET NE ES fas Sore 14

Mobile v. Bolden, 446 U.S. 55 (1980) 00000 17

TABLE OF AUTHORITIES—Continued

Page

Olmstead v. United States, 277 U.S. 438 (1928)... 10

Parham Vv. J.R., 442 U.S. 584 (1979) 0 47

Pierce v. Society of Sisters, 268 U.S. 510 (1925). 9

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

Ee 7, 17, 19, 38, 41, 43, 44, 45

Planned Parenthood v. Danforth, 428 U.S. 52

ES 5, 7, 11, 13, 15, 16, 17, 19, 25, 41, 46

Planned Parenthood vy. Fitzpatrick, 401 F. Supp.

554 (E.D. Pa. 1975), aff'd mem., 428 U.S. 901

I isa duties taaameasa tiara tnatilinsinaaictntninmaaans 28

Polar Ice Cream & Creamy Co. v. Andrews, 375

8 0 A a a en 21

Roberts v. Wood, 206 F. Supp. 579 (S.D. Ala.

a EE Ec ey 5 Gy nen 24

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

Sard v. Hardy, 281 Md. 432, 379 A.2d 1014

SENSES ARR ee cae a 24

Shapiro Vv. Thompson, 394 U.S. 618 (1969)... 9,14

Singleton v. Wulff, 428 U.S. 106 (1976) 12, 26

Skinner v. Oklahoma, 316 U.S. 535 (1942)... 10

Stanley v. Georgia, 394 U.S. 557 (1969) 9

Union Pacific Ry. v. Botsford, 141 U.S. 250

ETRE SS A AI a 9

United States v. Vuitch, 402 U.S. 62 (1971). 38

Whalen v. Roe, 429 U.S. 589 (1977) — 10, 12

Williams v. Zbaraz, 448 U.S. 358 (1980) ida 16

WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964)... 21

Woolley v. Henderson, 418 A.2d 1123 (Me. 1980). 24

Wynn v. Scott, 449 F. Supp. 1302 (N.D. Ill. 1978)

aff'd,599 F.2d 193 (7th Cir. 1979) 34-35

Statutes and Regulations

Illinois Abortion Law of 1975, Ill. Rev. Stat. ch. 38

(1983) :

ae 29

Section 2(10) © 81-22(10) iecaitiaiial aaa 29

Section 6(1) © 81-26(9).. 7, 34, 39, 42, 43, 44

Section 6(4) © 81-26(9)... 6, 34, 39, 40, 42

Section 11(d) © 81-31(d) 0. 29, 31, 32, 33, 34

vii

TABLE OF AUTHORITIES—Continued

Pennsylvania Abortion Control Act, 18 Pa. Cons.

Stat. Ann. (Purdon 1983) :

ERE Sa

Section $210(8) —............................ 6, 34, 39, 40,

ae PN SRE

Section 3211

Miscellaneous

American College of Obstetricians and Gynecolo-

gists, Tech. Bull. No. 56, Methods of Mid-

trimester Abortion (Dec. 1979)...

Anderson, Gibson & Hobbins, Obstetric Manage-

ment Of The High Risk Patient, in Medical

Complications During Pregnancy (G. Burrow &

H. Barber & E. Graber, Surgical Disease in Preg-

ER ee

R. Bolognese & S. Corson, Interruption of Preg-

nancy—aA Total Patient Approach (1975)

Bygdeman, Prostaglandin Procedures, in Second

Trimester Abortion (G. Berger, W. Brenner &

SERRE i ce Ae

E. Cassell, Talking with Patients (1985)...

Cates & Grimes, Morbidity and Mortality of Abor-

tion in the United States, in Abortion and

Sterilization (J. Hodgson ed. 1981). is

Cates, Smith, Rochat & Grimes, Mortality From

Abortion and Childbirth: Are the Statistics

Biased?, 248 J.A.M.A. 192 (1982). is

Cavanagh & Comas, Spontaneous Abortion, i in Ob-

stetrics and SRenntssaiapueed (D. Danforth ed.

1982) . a

44, 45

viii

TABLE OF AUTHORITIES—Continued

Page

Grimes & Cates, Complications from Legally-

Induced Abortions: A Review, 34 Obstetrical

and Gynecological Surv. 177 (1979)... 36

Grimes & Cates, Dilatation and Evacuation, in

Second Trimester Abortion (G. Berger, W.

Brenner & L. Keith eds. 1981)... 35, 38

Hack, Fanaroff & Merkatz, The Low-Birth-Weight

Infant—Evolution of a Changing Outlook, 301

New Eng. J. Med. 1162 (1979)... 35

Hern, Mid-Trimester Abortion, in Obstetrics and

Gynecology Ann. 375 (1981) 000 37

Kaiser, Fertilization and the Physiology and De-

velopment of Fetus and Placenta, in Obstetrics

and Gynecology (D. Danforth ed. 1982) sss 30, 33

J. Katz, Experimentation With Human Beings

I eienieiienneiecenittiensenrennreiniparintieeainaeaaiiaicil iris 24

Kerenyi, Hypertonic Saline Instillation, in Second

Trimester Abortion (G. Berger, G. Brenner &

SS FP Pe ee 36

Kerenyi, Intra-Amniotie Techniques, in Abortion

and Sterilization: Medical and Social Aspects

ST ee ee 36, 37

Kleiman, When Abortion Becomes Birth: A

Dilemma of Medical Ethics Shaken by New Ad-

vances N.Y. Times, Feb. 15, 1984... 37

Laufman, Surgical Judgment, in Christopher's

Textbook of Surgery (L. Davis 9th ed. 1968). 23, 39

Lee & Baggish, Live Birth as a Complication of

Second Trimester Abortion Induced With Intra-

Amniotic Prostaglandin, 13 Advances in Planned

a RE 37

M. Lewis & C. Warden, Law and_ Ethics in the

Medical Office emer Bioethical Issues

SELENE LER ND SER ES SSS hh 46

Mandelman & Kerenyi, Medical and Surgical As-

pects of Elective Termination, in Rovinsky and

Guttmacher’. Medical, Surgical and Gynecologi-

cal Complications of Pregnancy (S. Cherry, R.

Berkowitz & N. Kase eds. 1985) SSE 37-38, 39

TABLE OF AUTHORITIES—Continued

Page

Meisel, The “Exceptions” to the Informed Consent

Doctrine: Striking a Balance Between Compet-

ing Values in Medical Decision-making, 1979

NN 24

Mishell, Control of Human Reproduction: Con-

traception, Sterilization and Induced Abortion,

in Obstetrics and Gynecology (D. Danforth ed.

ESRI renee eee Ca ee ee en cs 30

Nehemiah, Psychological Aspects of Surgical Prac-

tice, in Surgery: A Concise Guide to Clinical

Practice (G. Nardi & G. Zunidema 3d ed.

Se ee ene Le Ee 24, 29

Nesbitt & Abdul-Karim, Coincidental Disorders

Complicating Pregnancy, in Obstetrics and Gy-

necology (D. Danforth ed. 1982) 42

Philip, Little, Polivy & Lucey, Neonatal Mortal-

ity Risk for the Eighties: The Importance of

Birth Weight Gestational Age Groups, 68 Pedi-

i 35

1 President's Commission For The Study Of Ethi-

cal Problems in Medicine and Biomedical and

Behavioral Research, Making Health Care De-

NEE See a ce PY 24, 27, 28

J. Pritchard & P. MacDonald, Williams Obstetrics

EF a aa 30, 31, 38, 42

Robins & Surrago, Alternatives in Mid-Trimester

Abortion Induction, 56 Obstetrics and Gynecol-

ge 37

Rooks & Cates, Emotional Impact of D&E vw. In-

stillation, 9 Fam. Plan. Persp. 276 (1977)... 37

Rubin, McCarthy, Shelton, Rochat & Terry, The

Risk of Child Bearing Re-Evaluated, 71 Am. J.

_ 7 < y SS anol 32

Segal, Absence of Chorionic Gonadotropin in | Sera

of Women Who Use Intrauterine Devices, 44

Fertility and Sterility 214 (1985) sss—it 30

Stroh & Hinman, Reported Live Births Following

Induced Abortion: Two and One-Half Years’

Erperience in Upstate New York, 126 Am. J.

Obstetrics and Gynecology 83 (1976)... 36

TABLE OF AUTHORITIES—Continued

Stubblefield, Midtrimester Abortion by Curettage

Procedures: An Overview, in Abortion and

Sterilization: Medical and Social Aspects (J.

i.) rr

Stubblefield, Noftolin, Frigoletto & Ryan, Lami-

naria Augmentation of Intra-Amniotic PGF2

For Midtrimester Pregnancy Termination, 10

Prostaglandins 413 (1975) —.... ee

Waltz & Scheuneman, Jnformed Consent to Ther-

apy, 64 Nw. U.L. Rev. 628 (1970) 0...

Page

In THE

Supreme Court of the United States

OcTOBER TERM, 1985

No. 84-495

RICHARD THORNBURGH, et a/.,

. Appellants

AMERICAN COLLEGE OF OBSTETRICIANS AND

GYNECOLOGISTS, PENNSYLVANIA SECTION, et ai.,

Appellees

No. 84-1379

EUGENE F. DIAMOND, et ai.,

- Appellants

ALLAN G. CHARLES, et a/.,

Appellees

On Appeal from the United States Courts of Appeals

for the Third and Seventh Circuits

BRIEF AMICI CURIAE OF

THE AMERICAN MEDICAL ASSOCIATION,

THE AMERICAN ACADEMY OF FAMILY PHYSICIANS,

THE AMERICAN ACADEMY OF PEDIATRICS,

THE AMERICAN PSYCHIATRIC ASSOCIATION,

THE ASSOCIATION OF

AMERICAN MEDICAL COLLEGES AND

THE AMERICAN COLLEGE OF OBSTETRICIANS

AND GYNECOLOGISTS IN SUPPORT OF APPELLEES

INTEREST OF AMICI CURIAE

Amici curiae are six major organizations of health

care professionals. Each amicus shares in common an

abiding dedication to promote the public welfare through

emy of Pediatrics (“AAP”) is a nonprofit Pan-American

Association of approximately 24,000 physicians certified

in the specialized care of infants, children and adoles-

cents. The AAP’s principal purpose is to ensure the at-

tainment by all children of their full potential for physi-

cal, emotional and social health.

400 teaching hospitals and 76 academic societies in the

United States. AAMC’s purposes include the advance-

ment of medical education and the improvement of health

care in the United States. Amicus American Psychiatric

Association (APA) is the nation’s largest professional as-

sociation specializing in psychiatry, with a membership

exceeding 30,000 physicians. APA's purposes include pro-

moting the welfare of patients who require psychiatric

services.

Amicus American College of Obstetricians and Gyne-

cologists ‘“ACOG”) is a private, voluntary, nonprofit

organization of physicians who specialize in obstetric and

gynecologic care. ACOG is the leading group of profes-

sionals providing health care to women; its 25,000 mem-

bers represent approximately ninety percent of all ob-

stetricians and gynecologists practicing in the United

States.'

Amici’s interest in these cases stems from their desire

to provide medical care of the highest quality, their dedi-

cation to good medical practice and their commitment to

;

* ACOG is an appellee in Thornburgh V. American College of Ob-

stetricians and Gynecologists, No. 84-495. and is filing a separate

brief as a party in that appeal. Thus, it is joining this brief only

with respect to the appeal in Diamond v. Charles, No. 84-1379.

SUMMARY OF ARGUMENT

This Court has long recognized that the individual has

right to establish and maintain a doctor-patient relation-

ship with a physician. Roe v. Wade, 410 U.S. 113 (1973);

In the nearly two dozen related cases handed down

since Roe Vv. Wade, this Court has given content to the

fundamental right by establishing a doctrinal framework

which balances the woman's fundamental interest in mak-

for determining when the fundamental privacy right has

been infringed, thus requiring a state to satisfy the com-

pelling interest standard of judicial review. Such

fringement occurs when a state law interferes with a

woman's decision whether or not to terminate her preg-

nancy or when a state law interferes with a physician's

willingness or abiliiy to enter into a physician-patient re-

lationship with a woman considering an abortion, to

counsel the patient and to provide medically indicated

care and treatment. Second, the Court has established a

three-part compelling state interest test for laws that do

infringe the woman’s privacy right: the purpose of the

state law must be to advance the state’s compelling inter-

ests in maternal or fetal health; the specific means chosen

must be “reasonably related” to those compelling health

goals and thus consistent with sound medical practice;

and those specific requirements must be tailored to the

state’s legitimate goals. In sum, the Court’s decisions em-

ploy traditional constitutional standards applied in other

contexts necessarily modified in this context to balance

the privacy right to make a highly personal medical treat-

ment decision against the state’s compelling interests in

maternal and fetal health.

II.

A. Pennsylvania’s informed consent provision is un-

constitutional. Although this Court has upheld a basic

requirement that the physician must obtain the patient’s

informed consent, Planned Parenthood v. Danforth, 428

U.S. 52, 67 n.8 (1976), it has held that state attempts to

confine the physician’s professional discretion as to how

best to inform the patient concerning a medical procedure

and its consequences infringe the privacy right. /d.; City

of Akron, 462 U.S. at 445. Pennsylvania’s compelled dis-

closures interfere with the physician’s judgment and

therefore trigger judicial scrutiny under the compelling

interest test. The State’s mandated disclosures to all pa-

tients seeking an abortion are inconsistent with accepted

medical standards of individualized physician-patient com-

munication and therefore are unconstitutional.

B. Illinois’ “abortifacient” disclosure requirement is

unconstitutional. The woman’s right in consultation with

her physician to employ methods of birth control is

clearly part of the right of privacy recognized in Gris-

wold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v.

Baird, 405 U.S. 438 (1972), and Roe v. Wade, supra.

The State of Illinois compels the physician to communi-

cate that a birth control method which interferes with the

development of a fertilized egg constitutes “fetal death.”

This requirement is calculated to, and in fact will, inter-

fere with the patient’s decision and with the physician’s

ability to provide medically relevant information to the

patient. Compare City of Akron, 462 U.S. at 445. The

State has no compelling interest in discouraging women

from using birth control methods. Moreover, “fetal death”

is not a medically accepted description of the effect of

most, if any, birth contro] techniques. Finally, not every

woman needs or wants to have this information supplied

to her. Id.

C. The Illinois and Pennsylvania fetal treatment pro-

visions are unconstitutional. All three provisions attempt

to regulate late abortions which virtually always involve

women facing serious health problems. Available abor-

tion methods involve risks, both to the mother and to the

fetus. Section 6/4) of the Illinois Abortion Law of 1975

requires the physician to choose the abortion technique

that will best protect the fetus without increasing the

mother’s health risk whenever there is a “possibility” of

fetal survival. This provision is unconstitutional under

Colautti v. Franklin, 439 U.S. 379 (1979), and because the

requirement is inconsistent with medical practice.

Section 3210(b) of Pennsylvania’s 1982 Abortion Con-

trol Act requires the physician after the fetus is viable to

choose the abortion method most likely to protect the

fetus unless that method “significantly” increases the

mother’s health risk, which is defined expressly not to in-

clude emotional or psychological health. By preferring

the fetus’s health over the mother’s, and by forcing the

physician to disregard certain facets of the mother’s con-

dition, Pennsylvania attempts to further its compelling

interest in fetal health in ways that this Court already

has held are absolutely inconsistent with accepted medical

practices. See, e.g., Colautti v. Franklin, 439 U.S. at 400;

Planned Parenthood v. Ashcroft, 462 U.S. 476, 485 n.8

(1983) ( Powell, J.).

Section 6(1) of the Illinois statute requires the physi-

cian to choose the abortion method that best protects the

fetus’s chance of survival, if the fetus is “known to be

viable.” Although the statute burdens the patient-physi-

cian privacy right by regulating the physician’s treat-

ment decision at a time of maximum danger to the preg-

nant woman, the State does seek to further its compelling

interest in fetal health. But the State cannot justify this

imposition of a general requirement on the physician’s

exercise of medical judgment in an individual case when

he is planning and performing a late pregnancy abortion

because such a requirement impermissibly increases the

risk to the mother’s health.

D. Pennsylvania’s “second-physician” requirement for

abortions of a viable fetus can only withstand constitu-

tional serutiny under this Court’s decision in Planned

Parenthood v. Ashcroft, if it contains a clear exception

for emergency operations. The affirmative defense for

medical necessities in Pennsylvania’s law is not suffi-

ciently clear to comply with the holding in Ashcroft.

E. Pennsylvania’s reporting requirement is unconsti-

tutional. Pennsylvania requires physicians to supply it

with 14 items of information about each abortion and

compels physicians to explain the bases for their medical

judgments regarding certain treatment decisions. Some

of those requirements are unnecessarily burdensome. See

Planned Parenthood v. Danforth, 428 U.S. at 80-81.

Moreover, the State has made no effort to explain con-

cretely how this information is carefully tailored to its

interest in promoting maternal health.

ARGUMENT

I. THIS COURT HAS ESTABLISHED A DOCTRINAL

FRAMEWORK FOR IMPLEMENTING A WOMAN’S

PRIVACY RIGHT TO MAKE A PERSONAL MEDI-

CAL TREATMENT DECISION ABOUT TERMINA-

TION OF A PREGNANCY IN CONSULTATION

WITH A PHYSICIAN.

In its brief amicus curiae, the United States takes the

highly unusual position of asking this Court to overrule

a recent decision of the Court interpreting the Constitu-

tion—Roe v. Wade, 410 U.S. 113 (1973). The federal

government argues that Roe v. Wade should be abandoned

because the privacy right announced in that case cannot

properly be derived from the Constitution and because

legal standards for implementing the right do not exist.

(U.S. Br. at 20-30.) But a general right of privacy has a

long history in the jurisprudence of this nation and this

Court, and the specific rights at issue here follow logically

from precedents of this Court which the United States

itself considers valid. Moreover, as emphasized in this

Court’s decision in City of Akron, this Court has devel-

oped a doctrinal framework for implementing a woman’s

right to make a personal medical treatment decision, in

consultation with her physician, relating to procreation.

This framework balances the individual’s fundamental

privacy right with the states’ strong interests in maternal

and fetal health.’ Before addressing the specific provi-

% Amici recognize that reasonable people differ about how to

balance the privacy right against the state’s interest in maternal

and fetal health, and in particular about whether the state has a

compelling interest in fetal health before viability. This brief is

premised on the fact that this balance has already been struck by

the prior decisions of the Court. Given the diversity of views of

their members, amici neither endorse nor oppose the Court's hold-

ing that the state’s compelling interest begins at viability. As

noted above, amici’s interest is in ensuring that, when a woman

seeks medical treatment, state laws do not impermissibly infringe

on the ability of her physician to provide such treatment in the

manner best suited to the patient’s needs.

sions of state law at issue in these cases, amici will briefly

discuss these important threshold matters.

A. The Fundamental Privacy Right Arises In The

Context Of A Medical Treatment Decision.

1. This Court has long recognized that, as part of the

“liberty” protected by the Constityution’s Due Process

Clauses, the Constitution guarantees to each individual

certain areas or zones of privacy which remain free from

unjustified government interference or intrusion, although

the Constitution itself does not include an express right of

privacy. Compare Union Pacific Ry. v. Botsford, 141 U.S.

250, 251 (1891), with Stanley v. Georgia, 394 U.S. 557,

564 (1969). The Court’s privacy rulings rest on the

theory that the constitutional text does not, on its face,

specify all rights that warrant constitutional protection

from executive or legislative intervention.‘

*The concept of “liberty” in the Due Process Clause of the

Fourteenth Amendment is a “broad” one. Board of Regents v.

Roth, 408 U.S. 564, 572 (1972). For this reason, it has long been

recognized as protecting certain personal choices. See, e.g., Pierce

Vv. Society of Sisters, 268 U.S. 510, 534-535 (1925); Meyer v.

Nebraska, 262 U.S. 390, 399-400 (1923). Judicial recognition of an

individual’s relatively limited right, as part of personal liberty, to be

free from unnecessary governmental intrusion because of the pri-

vate nature of a personal decision hardly can be compared in

scope, as the United States attempts to do (U.S. Br. at 29-30), to

the judicial activism that marked the era of Lochner v. New York,

198 U.S. 45 (1905), and its progeny. See Roe v. Wade, 410 U.S.

at 167-171 (Stewart, J., concurring).

Moreover, privacy is hardly the only value that has received con-

stitutional recognition without being expressly specified in the con-

stitutional text. For example, this Court has had little difficulty in

deriving a constitutional right to travel. Shapiro v. Thompson, 394

U.S. 618 (1969). In addition, although “federalism” is nowhere

mentioned in the Constitution, it is commonly assumed that the

doctrine is part of the constitutional scheme and that judicial inter-

vention is warranted if the federal legislative or executive branches

intrude into state prerogatives. This Court has recognized as much.

See Coyle v. Smith, 221 U.S. 559, 565 (1911): Gercia v. San

Antonio Metropolitan Transit Authority, —— US. , 105 §. Ct.

1005, 1020 (1985).

The essence of the right to privacy is the concept that

an individual in certain circumstances has a right to be

let alone, Olmstead v. United States, 277 438, 478

(1928) ( Brandeis, J., dissenting), and that

must thus have “independence in making certain kinds of

important decisions.” Whalen v. Roe, 429 U.S. 589, 599-

600 (1977). At the core of such a right are ma

cerning marriage and procreation; the spectre of govern-

mental agents unnecessarily interfering with such inher-

ently private, individual decisions is antithetical to basic

concepts of individual liberty in a free society. See Gris-

wold v. Connecticut, 381 U.S. 479 (1965); Loving Vv.

Virginia, 388 U.S. 1 (1967); Eisenstadt v. Baird, 405

U.S. 438 (1972). See also Skinner v. Oklahoma, 316 U.S.

535, 541 (1942).°

2. Building on the precedent of constitutional protec-

tion for individual decisions affecting marriage and pro-

creation, this Court in Roe v. Wade held that the “right

of privacy . . . found in the Fourteenth Amendment’s

concept of personal liberty and restrictions upon state

5 The United States seems to accept Griswold v. Connecticut, 381

U.S. 479 (1965), as a legitimate decision on the ground that en-

forcement of a statute prohibiting the use of contraceptives would

require wholly impermissible governmental prying into the private

lives of individuals. (U.S. Br. at 20 n.6). Having accepted Griswold,

however, the government's textual theory (U.S. Br. at 23-28) for

rejecting Roe v. Wade collapses, because this Court did not locate

the right recognized in Griswold in a specific constitutional provi-

sion and could net. as the United States suggests, have located it

in the Fourth Amendment alone (because the Amendment guaran-

tees procedural, not substantive, rights). The United States’ brief

therefore bears “witness that the right of privacy which passes for

recognition here is a legitimate one.” Griswold, 381 U.S. at 485

‘emphasis added). Once the existence of a constitutional privacy

right is, in effect, conceded, the United States’ theory reduces to

whether unnecessary governmental intrusion into a hospital operat-

ing room or a physician's examining room during a medically indi-

cated obstetric or gynecologic procedure or examination is somehow

inherently less repugnant than a similar governmental attempt to

search a home.

gt th ITs rp 410

since Roe was decided in January

(1976) . Bellotti v. Baird, 428 US. 132 (1976); Beal

Doe, 432 U.S. 438 (1977); Maier v. Roe, 432 US. 464

(1977); Colautti v. Frankiin, 439 U.S. 379 (1979);

Bellotti Vv. Baird, 443 U.S. 622 (1979); Harris v. McRae,

448 U.S. 297 (1980); H.L. v. Matheson, 450 U.S. 398

(1981). Because this Court in City of Akron recently

based, in part, on principles of

City of Akron, 462 US. at 427 (citations omitted; em-

. phasis added) :

[T)he full vindication of the woman’s fundamental

right necessarily requires that her physician be given

* Given the Court’s recent adherence to Roe v. Wade, in express

reliance upon principles of stare decisis, the United States’ request

for overruling that case now is particularly curious. It is, in effect,

asking this Court not only to reconsider a constitutional precedent

13 years old, but also City of Akron, which was handed down barely

twe years ago. Indeed, certain passages of the brief read as if it

were an untimely petition for rehearing of City of Akron. (U.S.

Br. at 16-20.)

“the room he needs to make his best medical judg-

ment.” ... The physician's exercise of this medical

judgment encompasses both assisting the woman in

the decisionmaking process and implementing her de-

cision should she choose abortion.

The Court has, accordingly, given “consistent recognition”

to the “critical role of the physician in the abortion pro-

cedure.” 462 U.S. at 448 n.39.’ Indeed, a dominant and

recurring theme in this Court’s abortion cases is that to

effect the woman’s constitutional right the physician must

have freedom: ‘a! to enter into a physician-patient rela-

tionship; ‘b) to advise the patient properly; and ‘c) to

perform appropriate medical procedures for her, consist-

ent with accepted medical standards. City of Akron, 462

U.S. at 427; Colautti v. Franklin, 429 U.S. at 387."

7 That the woman's right to decide whether to terminate a preg-

nancy encempasses the right to a physician-patient relationship—

indeed takes root in a medical context —is reflected in Connecticut

v. Menillo, 423 U.S. 9, 11 (1975). There the Court held summarily

that “prosecutions for abortions conducted by nonphysicians in-

fringe upon no realm of personal privacy secured by the Constitu-

tion against state interference.”

This congruence between the physician's interest in exercising

professional judgment on behalf of the patient and the woman's

decision whether or how to terminate her pregnancy received con-

crete recognition in Singicton Vv. Wulff, 428 U.S. 106, 117 (1976),

where a plurality of the Court held that physicians could assert the

constitutional rights of their patients. Noting that the physician is

“intimately involved” in the abortion decision and that the “woman

cannot safely secure an abortion without the aid of a physician.”

the plurality concluded that “{a|side from the woman herself, there-

fore, the physician is uniquely qualified to litigate the constitution-

ality of the State's interference with, or discrimination against, that

decision.” Id. at 117. See alee Whalen v. Ror, 429 US. at 604 9.33

* Thus, in Roe iteelf, the Court deteribed the exsential right in

terms of the physician's ability to practice medicine on behalf of

the woman —the phys.cian. in consultation with the patient, must be

“free to determine, without regulation by the State, that. in his

medical judgment, the patient's pregnancy mus«t be terminated” and

once the decision to abort is made. the abortion muset bx performed

“free of interference by the State.” 410 U.S. at 16%. On the «ame

In Planned Parenthood v. Danforth, supra, the Court

analyzed the important role of the physician in consulting

with the patient prior to any medical procedure. In up-

holding a State-imposed requirement that the consultation

process must produce at its conclusion a signed, written

consent form, the Court expressly recognized that too

great an intrusion into the consultation process itself

“might well confine the attending physician in an un-

desired and uncomfortable straitjacket in the practice of

his profession.” 428 U.S. at 67 n.8&. The Court in City

of Akron applied the Danforth dictum to protect the

physician and patient from efforts by the government

to intrude into the pre-decision consultation process.

In striking down a law requiring the physician to recite

a litany of abortion “facts,” the Court reasoned: “It re-

mains primarily the responsibility of the physician to

ensure that appropriate information is conveyed to his

patient, depending on her particular circumstances.” 462

U.S. at 443.

Similarly, once the woman in consultation with her at-

tending physician has decided to undergo an abortion, her

privacy right requires that substantial deference be ac-

corded to the judgment of her physician in carrying out

that decision. Thus, for instance, the fundamental deci-

sion whether a fetus is viable must be “a matter for the

judgment of the responsible attending physician.” Plan-

ned Parenthood Vv. Danforth, 428 US. at 64: Colautti vy.

Franklin, 439 U.S. at 396. And, the procedure of choice

recommended by the physician is generally not subject to

restriction by the state. 428 U.S. at 78. Ordinarily, the

day Roe was decided, the Court in Dor v. Bolton. 410 US. 179

(1972), atruck down a G: ryia state law requiring the epproval of

a hospital «taff abortion committce before a physician could perform

an abortion. The Court held that the procedure interfered with the

physician's exercise of his best judgement and the physician's “right

to administer” medical care 4190 US. at 197. Bee ales id at 20"

Burger, (. J. concurring): Bellotti vo Baird. 444 US. 682. 641

1979)

state’s health interests are fully protected by the duty of

care the physician owes the patient and the ethical duties

demanded by the medical profession. Doe v. Bolton, 410

U.S. at 199. See also id. at 207-208 ‘Burger, C.J., con-

curring) .”

B. State Interference With the Woman's Choice Be-

tween Abortion And Childbirth Or With the

Woman's Relationship With Her Physician Triggers

Searching Judicial Examination Pursuant To The

Compelling State Interest Test.

1. Having established that the right to decide whether

to terminate a pregnancy, and the correlative right to a

physician-patient relationship, is “fundamental” in a con-

stitutional sense, this Court has further held that state

“interference” or “infringement” of that right triggers

a searching judicial] examination pursuant to the compel-

ling state interest test. Roe v. Wade, 410 U.S. at i55;

City of Akron, 462 U.S. at 427. The requirement that a

state justify “interference” or “infringement” of a funda-

mental constitutional right under a compelling state inter-

est test is, of course, well-established in constitutional

adjudication."”

Given the nature of the right, there are two types of

infringement which trigger heightened judicial scrutiny.

First, infringement occurs when state laws interfere with

the woman's decisions whether to enter into a physician-

*In addition to the woman's right of privacy, physicians, of

course, also have an independent right under the Due Process Clause

of the Fourteenth Amendment to reasonable notice concerning pre-

cisely which of their actions violate the criminal laws of the state.

Medicine is not an exact science, and therefore the state must care-

fully define the scope of criminal liability that it attempts to apply

to various aspects of the practice of medicine. Colautti v. Franklin,

439 U.S. at 392-394. Moreover, criminal liability which is not prop-

erly defined may deter physicians from engaging in arruably pro-

tected activity to the detriment of the patient. /d. at 994.

Ser, ea. Shapiro v. Thompson, 394 U.S. 618 (1969); Miami

Herald Publishing Co. ¥. Tornillo, 418 U.S. 241 (1974).

iss is meee

patient relationship with respect to abortion and whether

or not to terminate her pregnancy. This Court has estab-

lished certain standards for determining whether such an

infringement has occurred: when a state abortion law im-

poses additional health risks on the woman; when a state

law attempts to influence the woman's informed choice

between abortion or childbirth through the physician-

patient relationship; when a state attempts to force the

woman to share decision-making authority with a spouse;

or when a state law imposes costs on a woman unique to

the abortion procedure."

Second, infringement occurs when state laws interfere

with a physician's willingness or ability to enter into a

doctor-patient relationship, to counsel his patient and to

provide medically indicated care and treatment.’ Thus,

there is infringement when a state law interferes with a

physician's best medical judgment or is otherwise incon-

sistent with the state of medical knowledge and sound

medical practice; when a state law threatens the doctor

with sanctions which arise solely from abortion counseling

and treatment; or when a state law imposes other burdens

on a physician in the abortion context which could deter

establishment of a physician-patient relationship or the

" See, ¢.., additional health riske—-Harris v. MeRee, 448 US

297, 328 (1980) (White, J., concurring) ; influence woman's choice

City of Akron, 462 U.S. at 444; share decision-making qwithority

Planned Parenthood Vv. Danforth, 428 U.S. at 69; and costs unique

to abortion——-City of Akron, 462 U.S. at 4295, 498, 447.

" Examples of how state intrusions operate illustrate pointedly

why the privacy right extends both to the woman's decision and

to the relotionship hetween the patient and physician. Thus, regula-

tions that affect the physician's practice of medicine will very often

affect the woman's decision or ability to have an abortion. For in-

stance, if the state declares unlawful the only abortion procedure

that would he safe for a particular woman, then the state interferes

with the physician's ability to practice medicine according to his

best medical judgment and the woman will be effectively denied her

right to make a decision whether to have an abort on.

discharge of professional obligations within that relation-

ship."

2. This Court has also held that certain types of gov-

ernmental actions relating to abortion do not infringe the

fundamental privacy right and thus do not trigger the

compelling state interest test. First, there are laws which

do not subsidize the abortion procedure at levels equal to

a state subsidy granted to other medical procedures. The

Court has held that refusal to finance an abortion with

state or federal money,"' or to make publicly-financed hos-

pitals available for abortions, does not impose any addi-

tional burden either on the woman or her physician. In

these circumstances, the woman “suffers no disadvantage”

of constitutional significance by the government's refusal

to extend benefits to her to which she otherwise can make

no claim of Constitutional entitlement. Maher v. Roe, 432

U.S. 464, 474 (1977); Harris v. McRae, 448 U.S. 297,

314 (1980). Such a decision not to fund is valid so long

as it is rationally-related to a legitimate purpose."

"See, ¢¢., interference with best medical judgment—Deer v.

Bolten, 410 U.S. at 195-200, Planned Parenthood v. Danforth, 428

U.S. at 64, City of Akron, 462 U.S. at 445, 450; inconsistent with

state of medical practice-Planned Parenthood v. Danforth, 428

U.S. at 63-44, City of Akron, 462 U.S. at 448; sanctions solely from

abortion role olewtti v. Franklin, 499 U.S. at 390, 994, 397: other

burdensPlenned Parenthood ¥. Danforth, 428 U.S. at 79-80 (ree-

ord keeping requirement needs justification ).

Horvia v, AeRee, 448 US. 297, 314 (1980) ; Willieme v. Zherez,

448 U.S. 358, 969 (1980); Beal v. Doe, 482 U.S. 498 (1977); Maher

Vv. Ree, 492 U.S. 464 (1977).

™ The United States misinterprets this Court's holdings in the

abortion funding cases by relying upon them to suppert more ex-

pansive efforts by the state to regulate the abortion process directly.

(U.S. Br. at 3.) The state's interest in favoring birth over abortion

is only lewitimate when the state's action does not interfere with

the privacy right: otherwise, the two interests are mutually ex

clusive. See Ree v. Wade, 410 U.S. at 163-164. The state may favor

childbirth over abortion in the context of dispensing benefits to

which the woman has no constitutional entitlement. without inter-

Second, there are “minor regulations” which “may not

interfere with physician-patient consultation or with the

woman's choice between abortion and childbirth.” City

of Akron, 462 U.S. at 430 (emphasis added). Thus, by

definition, a regulation is “minor” as a general matter

when it does not “interfere” with or infringe the funda-

mental right under this Court's standards for determin-

ing such infringements. See pp. 14-16, supra. For exam-

ple, a state law is “minor” in this constitutional context

when it applies equally to abortions and to other medical

procedures."" Even these “minor” state laws relating to,

but not interfering with, the fundamental right must fur-

ther “important health related state concerns” to be

If a state law infringes a fundamental right, then that

law is “presumptively unconstitutional”, Merris v. Me-

Rae, 448 U.S. at 312, quoting Mobile v. Bolden, 446 US.

55, 76 (1980), and cannot withstand judicial scrutiny

unless the compelling state interest test is met. In the

abortion context the compelling state interest test is com-

prised of three elements: the purpose of the state's law

must be to advance the state’s “compelling interests” in

maternal or fetal health; the specific means chosen must

be “reasonably related” to those compelling goals and

thus consistent with sound medical practice; and those

specific requirements must be carefully tailored to the

state's legitimate goals. Under this Court's decisions,

fering with the fundamental right. But, when it touches the highly

personal issue of whether to terminate a pregnancy such a prefer-

ence by the state constitutes an infringement of the right. Ser City

of Abron, 462 US. at 444 0.38.

See Planned Porcathoed ¥. Danforth, 428 U.S. at 66-47. Plee-

ned Porvathoed v¥. Avhevelt, 42 US. at 486-490 (Powell, J.);

City of Ab on, 462 US. at 420.

failure to satisfy eny of these elements is fatal to the

state's effort to infringe the woman's fundamental right.

City of Akron, 462 U.S. at 426-431.

In much fundamental rights adjudication, a holding of

infringement will doom a law because the state has no

constitutionally recognized “compelling interest” in such

may have a compelling interest in protecting the moth-

er's health after the first trimester of a

Roe v. Wade, 410 U.S. at 154, 163; City of Akron, 462

U.S. at 428-429. Similarly, at the point of viability, the

state has a compelling interest in preserving the poten-

tial life of the fetus, so long as the fetus’s survival does

not pose a threat to the life or health of the mother.

Ree v. Wade, 410 U.S. at 162-163; City of Akron, 462

U.S. at 428. See note 3, supra.

Second, the presence of a compelling purpose does not

ensure the constitutionality of the state's particular in-

fringement of the fundamental privacy right. As the

Court explained in City of Akron, 462 U.S. at 434, “the

existence of a compelling state interest in health, how-

"The state's interest in maternal health was held te be com-

pelling at the end of the first trimester in Ree v. Wede because

“mortality in abertion may be less than mortality in normal child-

birth.” 410 U.S. at 163. In City of Abron, this Court retained the

beginning of the second trimester “as the approximate time at

which the State's interest im maternal health becomes sufficiently

compelling te justify significant regulation of abortion.” 462 U

at 429 n.11. But, as neted immediately below, although the state's

compelling interest in promoting matefnal health begins at the end

of the first tromester, a second trimester regulation te achieve that

end will only survive judicial scrutiny if © satiafies the eccond

element of -he compelling state intervst test and is consistent with

accepted medical practice /d | Second trimester regulations must

have “reasonable medical basis.” )

ever, is only the beginning of the inquiry.” Thus, a

state’s requirements must be “reasonably relate{d]” to

the compelling goals. Roe v. Wade, 410 U.S. at 163; City

of Akron, 462 U.S. at 434. Typically, this second, “rea-

sonably related” element of the test involves an inquiry

into whether the state’s requirements are consistent with

accepted medical practices. Thus, when the state pur-

ports to regulate to further the health of the mother or

fetus, it is obliged to adopt measures that have a reason-

able medical basis. “The State’s discretion to regulate

. . . does not, however, permit it to adopt abortion regu-

lations that depart from accepted medical practice.” City

of Akron, 462 U.S. at 431. See Planned Parenthood vy.

Ashcroft, 462 U.S. at 487 ( Powell, J.) ; Planned Parent-

hood Vv. Danforth, 428 U.S. at 78." This rule embodies

the common sense proposition that, if a state is to fur-

ther a health related goal, i.e. maternal health, it must

use accepted medical means in doing so. See City of

Akron, 462 U.S. at 431.

Third, state laws that interfere with or burden the

right must be carefully tailored to the state’s objective.

See Roe v. Wade, 410 U.S. at 165; Planned Parenthood

v. Ashcroft, 462 U.S. at 485 n.8; City of Akron, 462 U.S.

at 438. The law must, in other words, not be overbroad

and must, therefore, advance the compelling state in-

terest without any additional and unnecessary interfer-

ence with the fundamental right. City of Akron, 462

% For instance, in City of Akron the Court held that the City’s

requirement that all second-trimester abortions be performed in a

hospital was unconstitutional, because the practices of the medical

profession had advanced to the point that such abortions could be

performed safely and were being performed routinely in out-patient

clinics. The City was therefore obliged to follow the accepted medi-

cal practice when it attempted to regulate directly the physician's

medical practices in a way that in turn affected the patient's deci-

sion whether to seek treatment. 462 U.S. at 437.

U.S. at 438." Thus, for example, the state has a com-

pelling interest in the health of the woman after the

first trimester, but in promoting that interest, the state

cannot require the abortion to occur only in a hospital,

regardless of the patient’s condition. City of Akron, 462

U.S. at 437. It can, of course, regulate out-patient clin-

ies to ensure that they are capable of responding to com-

plications that might commonly occur. In this way the

state protects its interest without undermining the

physician’s judgment about how best to treat the par-

ticular patient.*°

This framework established by the Court’s abortion

decisions is not the product of a series of ad hoe judicial

responses to specific attempts by some states, often the

same ones repeatedly, to regulate various facets of the

abortion process. Rather, consistent with sound tradi-

tions of constitutional adjudication, the Court has pro-

ceeded on a case-by-case basis to define the contours of

the right. Its decisions employ the traditional constitu-

tional standards applied in other contexts with necessary

modifications made to adjust both to the unique medical

context implicated by the personal decision to terminate

a pregnancy using medical procedures and to the state’s

compelling interest in maternal and fetal health. A\l-

though those standards may require the Court to engage

in some difficult line drawing within the interstices of the

framework, those interstitial judgments are no more

™ This is also traditionally required when other fundamental

rights are infringed by governmental action. See, ¢.g., Aptheker v.

Secretary of State, 378 U.S. 500 (1964); Cantwell v. Connecticut,

310 U.S. 296 (1940).

*” Although the Court in City of Akron relied heavily upon the

effect of the hospitalization requirement on the woman's ability to

afford an abortion, in our view it could also have relied upon the

intrusion into the physician’s judgment as to the best setting in

which to perform the medical procedure.

difficult than the problems posed in applying other con-

stitutional provisions in a modern era. Compare Katz

v. United States, 389 U.S. 347, 352 (1968) (importance

of accommodating constitutional guarantees to changing

technology). That certain concepts in the Court’s frame-

work—for example, maternal health or fetal viability—

are defined with reference to contemporary standards of

social or medical science is hardly unusual or prob-

lematic.*' Thus, if fetal viability occurs earlier in a

pregnancy because of medical advances, then the state’s

compelling interest in protecting fetal health will simply

be triggered sooner. Cf., City of Akron, 462 U.S. at 456-

457 (O’Connor, J., dissenting).

In sum, this Court’s decisions demonstrate that, in the

years since Roe v. Wade, the Court has developed a set

of legal standards to guide state and local governments

and lower federal courts in deciding where the boundaries

of the privacy right lie. That state legislatures may con-

tinue to explore the limits of those boundaries is no rea-

21 In Addington Vv. Teras, 441 U.S. 418, 430 (1979), for example,

the Court unanimously established the due process standards for

involuntary civil commitments based on the state of medical practice

at the time. The Court expressly relied upon “practical considera-

tions” arising from the nature of psychiatry in shaping its burden

of proof standard. 441 U.S. at 434. Simply because the Court simi-

larly applies standards in the abortion context to take account

of “practical” medical considerations does not, per se, cast any

doubt upon the Court's approach.

In addition, this Court routinely has relied upon sovial science ma-

terials and concepts in resolving complicated constitutional issues in

a wide range of cases. See, e.g., Brown V. Board of Education, 347

U.S. 483, 494 n.11 (1954). Thus, for instance, political science

analyses have been utilized in applying the one-person-one-vote prin-

ciple of the Fourteenth Amendment, see, e.g., WMCA, Ine. V.

Lomenzo, 377 U.S. 633, 645 n.9 (1964), and economic analysis has

been instrumental in deciding commerce clause cases, see, ¢.9.,

Polar lee Cream & Creamery Co. ¥. Andrews, 375 U.S. 361, 378 nil

(1964).

son to abandon them. Instead, the Court should reaffirm

its commitment to the woman’s right in consultation

with her physician to make fundamental, personal deci-

sions about medical treatment relating to procreation

without unjustified governmental interference.

Il. THE STATE LAWS AT ISSUE IN THESE APPEALS

ARE UNCONSTITUTIONAL.’

Application of the Court’s doctrinal framework ren-

ders the state laws at issue in these cases unconstitu-

tional. Indeed, certain provisions are invalid as directly

in conflict with prior holdings of the Court.

A. Pennsylvania's Informed Consent Provisions Are

Unconstitutional.

Section 3205 of Pennsylvania’s 1982 Abortion Control

Act, 18 Pa. Cons. Stat. Ann. § 3205 (Purdon 1983), lists

certain information that the physician must recite to

each woman as part of the process of obtaining her in-

formed consent to the aborton procedure. This informa-

*2 Appellants in both cases raise a number of procedural issues

including jurisdiction and mootness. Amici, with one exception dis-

cussed immediately below, do not address these issues but proceed

as if all of the substantive issues are before the Court.

Pennsylvania has presented an issue concerning its parental con-

sent statute for minors seeking abortions. 18 Pa. Cons. Stat. Ann.

$3206 (Purdon 1983). The court of appeals enjoined enforcement

of the provision until the State Supreme Court adopted rules to

implement the provision for judicial review of the minor's ability to

give consent to the procedure. Pennsylvania's argument in this

Court now turns largely on rules recently adopted by its Supreme

Court which obviously were not considered by the lower courts.

(Pa. Br. at 76-77.) Because the court of appeals’ disposition of this

issue was clearly correct at the time of the decision, amici submit

that that decision should be affirmed. Amici believe the Court should

dispose of this issue without considering the new rules de nove;

we thus take no position on the constitutionality of those rules.

tion includes, inter alia: the fact that the woman may

suffer unforeseeable and detrimental physical and psycho-

logical consequences from the abortion, the medical risks

associated with full-term pregnancy, and the “probable

gestational age of the unborn child.” The physician or

his agent also must inform the mother that, if she car-

ries the child to term, the mother may qualify for state

or private financial assistance and would be entitled to

child support from the father. § 3205(b).

In addition, the woman must be offered printed mate-

rials prepared by the State. 18 Pa. Cons. Stat. Ann.

$3208 (Purdon 1983). The printed materials will de-

scribe the developing physical characteristics of the fetus

in two-week gestational increments. These materials also

must contain a statement that the State “strongly urges”

the woman to contact listed agencies offering alternatives

to abortion before she consents to the procedure.

1. Medical Background. In order to understand how

Pennsylvania’s informed consent provision interferes

with the physician-patient consultation process, it is nec-

essary first to understand how that process works. Con-

sultation is the method of ensuring that each patient

gives a knowing and voluntary informed consent to a

medical procedure. The doctrine of informed consent is

itself rooted in notions of patient autonomy and the

uniqueness of each patient’s needs. See, e.g., Canterbury

v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert. denied,

409 U.S. 1064 (1972); E. Cassell, Talking With Patients

4-5 (1985); Waltz & Scheuneman, /nformed Consent to

Therapy, 64 Nw. U. L. Rev. 628, 630 (1970; Just as

some patients wish to be informed about every conceiv-

able complication, no matter how remote, that may result

from a medical procedure, others find such information

frightening and would prefer to be spared the details.

See, e.g., Laufman, Surgical Judgment, in Christopher's

Textbook of Surgery 1459 (L. Davis 9th ed. 1968);

1022 (1977).

The informed consent doctrine thus stresses that the

degree and kin! of information to be conveyed must dif-

fer with the patient and the procedure; no universal

list of information can provide each patient with proper

information. For that reason, the decision about what

specific information should be disclosed to the patient

must be left to the physician’s discretion. See 1 Presi-

dent’s Commission for the Study of Ethical Problems in

Medicine and Biomedical and Behavioral Research, Mak-

ing Health Care Decisions 18-39 (1982).

2. Infringement. This Court previously considered

whether informed consent provisions infringe the wom-

*3 For example, when excessive disclosure would result in anxiety,

fear, emotional distress or even increased physical pain, physicians

may decide in the exercise of their professional judgment to tell their

patient no more than she wishes to hear. Ser, «.¢.. Roberts v. Weed,

206 F. Supp. 579, 583 «S.D. Ala. 1962) ‘disclosure of risks of “a

technical nature beyond the patient's understanding” may cause

“anxiety, apprehension, and fear .. . [with! a very detrimental

effect on some patients”); Weelley Vv. Henderson, 418 A2d 1123,

1130 (Me. 1980) ‘the doctor must decide “whether disclosure of

possible risks may have such an adverse effect on the patient as te

jeopardize success of the propesed therapy”. “full disclosure under

some circumstances could constitute bad medical practice”), Cobbs

Vv. Great, 8 Cal. Sd 229, Se? Pld 1,. 104 Cal. Rptr. 505 (1972) (en

benc) (a patient has a right to decline te be informed about the

risks of a prepesed medical procedure). See gen relly J. Kate, Ex-

perimentation witr Human Beings 340-588 (1972): Meisel, The

“Eaceptions” to the Informed Consent Doctrine: Striking « Balance

Between Competing Valucs m Medical Decision-making, 1979 Wis.

L.. Rev. 413, 429.

an’s fundamental right in Planned Parenthood v. Dan-

forth and City of Akron. The Court in Planned Parent-

hood held that the state’s law requiring the physician to

obtain a written informed consent form signed the

patient did not infringe the fundamental right. But

the Court warned against specific structuring of the

informed consent process by the state. 428 U.S. at 67

n.8. In City of Akron, the Court found the City’s at-

tempt to compel the physician to communicate specific

information about abortions and their procedures an

interference with the fundamental right.*' In rejecting

the City’s attempt to structure the physician-patient dia-

iogue, the Court repeated the warning it had issued in

Danforth “against placing the physician in . . . an ‘un-

desired and uncomfortable straightjacket.." 462 U.S.

at 445. Thus, this Court has plainly indicated that at-

tempts by the state to dictate precisely what informa-

tion must be included as part of the consultation process

interfere with the privacy right.”

™ Both Pennsylvania (Pa. Br. at 71) and the United States (U.S.

Br. at 8) rely heavily wpon the Court's dictum in City of Akron that

certain required information, such as the fact the woman is preg-

nant, that she may be eligible for state assistance and the cestational

age of the fetus, “certainly is not objectionable.” 462 U.S. at 445 0.37.

But the Court did not state that it is conefitutione! for the state te

interfere with the physician-patient relationship by compelling these

or any disclosures. It merely found that these “facts” were not

“objectionable.” the way other Akron provisions were because these

did not discomrage a woman from having an abortion. The Court

was pot required te and did not say that it was going beyond Den-

farth which held only that the state can, without dictating the con-

tent of the form. property require a written consent form signed by

the patient

* The State argues (Po. Rr. at 65) that because it did not intend

to discourage abortions, its provision must be constitutional under

City of Abren, in which the Court held, inter elie, that the City’s

intent te discourages abertrors made its infermed consent law un-

constitutional. #62 U.S. at 445. The State reads tee much inte the

dicenscion of intent in Cite ef Alon. The Court did not adopt a

subjective “intent™ test as a necessary element of an infringement

In light of the individualized nature of the consulta-

tion process, Pennsylvania’s required disclosures strike

directly at the protected relationship between the woman

and her physician by attempting to structure the dia-

logue between them. The State seeks to dictate that

certain topics and information must be covered in con-

sultation with every patient, regardless of the physician’s

best judgment. It also forces the physician to act, in

effect, as the agent of the State; by emphasizing un-

foreseen risks of abortions and by recommending that

the woman postpone her decision, the physiciais are

being forced indirectly to encourage all their patients

to decide not to have an abortion.’ Sections 3205 and

3208 are not “minor” obligations that would typically

be applied to any other medical procedure. These provi-

sions constitute infringement of the fundamental right

because they are an attempt by the State to influence

the woman’s choice and directly burden the physician’s

exercise of medical discretion. See, e.g., Roe v. Wade,

410 U.S. at 165-166; Singleton v. Wulff, 428 U.S. at 128

(Powell, J.) .27

inquiry. It merely found that the City’s intent was obvious and

unconstitutional. Under the analysis outlined previousiy, the Court

also must focus on the effect of the state’s law which plainly inter-

feres with the physician-patient relationship in the pre-decision,

consultation process. In any event, by requiring more disclosures

concerning the risks of abortion than the risks of childbirth and

by requiring the physician to offer material that “strongly urges”

the woman to consider postponing her decision, Pennsylvania mani-

festly intends, just as much as Akron did, to discourage the woman’s

exercise of her constitutional right.

26 Instead of using its resources to inform women through a pub-

lic forum about what state-supported options are available, if the

woman chooses to carry her pregnancy to term, or to express gener-

ally the State’s views concerning chiléhirth, the State enlists the

physician as 1:s agent. Thus, the State :mproperly manipulates the

patient-physician relationship so as to influence the patient’s basic

decision. See note 28, infra.

27 The United States appears to argue (U.S. Br. at 8) that the

infor.nation requirement is permissible because physicians are free

2. Compelling Interest Analysis. To withstand con-

stitutional scrutiny, the State must demonstrate that

communication to the patient of State-mandated in-

formation is consistent with accepted medical practices

and is narrowly tailored to further Pennsylvania’s only

asserted goal—promotion of maternal health. This it

cannot do. In the first place, the State’s interest in the

mother’s health, which could justify the intrusion into

the physician-patient relationship, is not compelling until

at least after the first trimester. Thus, the required dis-

closures do not advance any compelling interest prior

to that time.

In addition, it is clear that Pennsylvania’s informed

consent requirement is not reasonably related to mater-

nal health because it is inconsistent with accepted med-

ical practices. As explained previously, good medical

practice demands that patient and physician decide to-

gether on treatment based on the specific needs of each

patient. “|E|thically valid consent is a process of shared

decisionmaking based upon mutual respect and partici-

pation, not a ritual to be equated with reciting . . . the

risks of particular treatments.” 1 Making Health Care

Decisions 2; E. Cassell, Talking with Patients 4-5

(1985).** See City of Akron, 462 U.S. at 448 n.38.

to supply the patient with any additional, truthful information they

wish. But this is no answer to the argument that the State’s

requirements interfere with the fundamental right. The State has

already artificially modified the patient-physician relationship by

forcing discussions into directions that, in the physician’s judgment,

may not be helpful to a particular patient and may affect the trust

and confidence of the patient in her physician. Nor does the phy-

sician’s right to respond justify the infringement. A mere opportu-

nity to undo the damage cannot constitute a compelling interest

required to justify the regulation. Moreover, the federal govern-

ment’s argument was at least implicitly rejected by this Court in

City of Akron: the physicians in that case were equally free to

attempt to rebut the “litany” of “facts” required by the City.

28 Indeed, the recent Presidential Commission indicted such recita-

tiens of medical risks as damaging both to the patient and the

patient-physician relationship:

Pennsylvania mandates a hollow ritual; among other

things, it forces physicians to discuss as a “fact” un-

foreseeable “detrimental physical and psychological” risks

of abortion that they may regard as wholly irrelevant

to the patient. Compare City of Akron, 462 U.S. at

445." Moreover, this type of disclosure may cause the

woman unneeded and unwarranted anxiety about the

procedure and thereby serve only to complicate her con-

dition. By discouraging the woman from having an

abortion, the required disclosures may also increase her

health risks. For these reasons as well, the required dis-

closure is not reasonably related to the State’s goal of

promoting maternal health.

It follows, of course, that the Pennsylvania statute

also cannot satisfy the “carefully tailored’ requirement

of the compelling interest test because the State requires

all women to receive certain information, regardless of

whether it will be medically beneficial to them. In addi-

. . » Patients’ interests are not well served by detailed, tech-

nical expositions of facts . . . reciting ‘all the facts’ in a blunt,

insensitive fashion can . . . destroy the communication process,

as well as the patient-professionai relationship itself. 1 Making

Health Care Decisions 71.

29City of Akron undermines the State’s heavy reliance upon

Planned Parenthood vy. Fitzpatrick, 401 F. Supp. 554 (E.D. Pa. 1975),

aff'd mem., 428 U.S. 901 (1976), as requiring reversal on*the in-

formed consent issue. In the first place, the requirement in the

earlier Pennsylvania Act, which still remains in the provision at

issue here, that the physician must supply certain information to the

patient makes the provision plainly unconstitutional under Cy of

Akron. Moreover, City of Akron provides the appropriate analyti-

cal framework for this issue. Not one judge on the Third Circuit

in this case, including Judge Adams who wrote the opinion for the

court in Fitzpatrick on the informed consent issue, even mentioned

Fitzpatrick as relevant. Instead, all of the judges who wrote below

analyzed the issue solely in terms of this Court’s plenary decision

in City of Aron. Accordingly, the Court’s summary affirmance,

which is in any event entitled to considerably less precedential

weight than an opinion on the merits, Edelman v. Jordan, 415 U.S.

651, 671 (1974), is entitled to no weight when it already has been

superseded by this Court upon subsequent plenary review of the

issue.

tion, the State’s required disclosures about unforesee-

able risks to the woman are “abortion regulations de-

signed to influence the woman’s choice between abor-

tion or childbirth” which this Court already has held

are not carefully tailored to the State’s legitimate goal

ef promoting maternal health and thus cannot justify the

State’s intrusion into the physician-patient relationship.

City of Akron, 462 U.S. at 444. Finally, Section 3205(a)

unequivocally requires the physician to supply informa-

tion about health risks, thus preventing other qualified

personnel from doing so. This Court in City of Akron

clearly held that such a requirement is overbroad, 462

U.S. at 447-449, and therefore Section 3205(a) is un-

constitutional for this additional reason.

B. Illinois’ Informed Consent Provision Is Unconsti-

tutional.

Section 2(10) of the Illinois Abortion Law of 1975, Ill.

Rev. Stat. ch. 38, { 81-22(10) (1983), defines “aborti-

facient” as any instrument, medicine, drug or any sub-

stance or device which is known to cause fetal death...

whether or not the fetus is known to exist when such

substance or device is employed” (emphasis added).

Section 11(d) of the Illinois Abortion Law of 1975, Ill.

Rev. Stat. ch. 38, {| 81-31(d) (1983), provides:

Any person who prescribes or administers any instru-

ment, medicine, drug or other substance or device,

which he knows to be an abortifacient, and which is

in fact an abortifacient, and intentionally, knowingly

or recklessly fails to inform the person for whom it

is prescribed or upon whom it is administered that it

is an abortifacient commits a Class C misdemeanor.*°

4° Although the reference to “fetal” death could be interpreted to

limit the provision to an ordinary abortion performed during the

first trimester, the term “fetus” is defined to include a fertilized

egg. Section 2(a) of the Illinois Abortion Act of 1975, Ill. Rev.

Stat. ch. 38, { 31-22(g) (1983). Thus, the provision was clearly

intended to regulate various forms of birth control.

1. Medical Background. There are a variety of artifi-

cial methods of birth control, and three of the most com-

mon and effective are directly affected by these Illinois

provisions. Two methods—the intrauterine device and

“the morning-after-pill” (stilbestrol)—are designed to

work after fertilization. The former blocks the blastocyst

(fertilized egg) from reaching the uterine wall and the

latter causes contractions in the uterus that discourage

implantation. J. Pritchard & P. MacDonald, Williams

Obstetrics 819 (17th ed. 1985); Segal, Absence of Chori-

onic Gonadotropin in Sera of Women Who Use Intrauter-

ine Devices, 44 Fertility and Sterility 214 (1985). The

most common and effective *'='h control is the so-called

“pill,” which prevents pregna.cy primarily by retarding

ovulation through the use of hormones. But ovulation is

not completely halted by the pill and so fertilization re-

mains a possibility. As an additional set of protections,

the pill’s hormones also affect the ability of the fertilized

egg both to reach the uterus and to implant itself. Mish-

ell, Control of Human Reproduction: Contraception,

Sterilization and Induced Abortion in Obstetrics and

Gynecology 256 (D. Danforth ed. 1982); J. Pritchard &

P. MacDonald, Williams Obstetrics 812-813 (17th ed.

1985).

With respect to the definition of “fetus,” it is custom-

ary to refer to the human conceptus, from fertilization

through the first 8 weeks of development, as an embryo,

and from 8 weeks after ovulation until term, as a fetus.

J. Pritchard & P. MacDonald, Williams Obstetrics 87

(17th ed. 1985) ; Kaiser, Fertilization and the Physiology

and Development of Fetus and Placenta, in Obstetrics

and Gynecology 317 (D. Danforth ed. 1982) (setting 11

weeks as the dividing line between embryo and fetus).

2. Infringement. Although the abortifacient disclosure

requirement does not necessarily implicate a woman’s de-

cision whether to have an abortion, it clearly affects the

woman’s basic ability to make a treatment decision re-

garding birth control and modifies how the physician can

and will consult with the patient. Thus, the law impli-

cates precisely the same core privacy concerns regarding

personal decisions about procreation as the laws in Roe V.

Wade, Griswold v. Connecticut, and Eisenstadt v. Baird.

Thus, under these decisions, the woman clearly has a fun-

damental! privacy right in consultation with her physician

to obtain and use an “abortifacient” as defined by Illinois

law.

The “abortifacient” provision of Illinois law is obvi-

ously designed to, and unquestionably will, intrude into

the patient-physician consultation process. The State

compels the physician to describe as causing “fetal death”

any birth control method which somehow prevents a fer-

tilized egg from becoming implanted in the mother’s

uterine wall or dislodges the implanted blastocyst. Any

effort by the State to dictate precisely what information

a physician must convey to the patient involves a direct

intrusion into the privacy of the physician-patient rela-

tionship. Moreover, by discouraging some women from

using birth control, the State increases the health risk to

the woman and thereby directly infringes her privacy

right. The “risk of dying as the consequence of using an

oral contraceptive is certainly less than that imposed by

pregnancy and delivery.” J. Pritchard & P. MacDonald,

Williams Obstetrics 817 (17th ed. 1985).

3. Compelling Interest Analysis. Although Section

11(d) primarily regulates the prescription of birth con-

trol methods instead of the performance of abortions, the

basic framework for evaluating infringements of the

woman’s privacy right derived from the abortion context

applies equally to this provision. Accordingly, Section

11(d) can only be upheld if it is consistent with accepted

medical practice and is carefully tailored to serve a com-

pelling state interest. Otherwise this infringement of the

woman’s fundamental right is unjustified. It is clear that

Section 11(d) cannot satisfy these standards. Because

the State did not appeal from the Seventh Circuit’s judg-

ment, the Court does not have the benefit of the State’s

own putative policy justification for enacting Section

1i(d). Appellants imply (Br. at 11) that the provision

is designed to spare women the trauma of a birth control

technique that may cause the non-development or loss of a

fertilized egg.

Although the mother’s emotional health is unquestion-

ably a legitimate concern to the state (just as it is often

a dominant concern to the physician; see pp. 38-39,

infra), it is not compelling unless the health risk the

state seeks to prevent is greater than the risk created

by compliance with the state’s law. See Roe v. Wade, 410

US. at 149; City of Akron, 462 U.S. at 435-436. But for

those women who forego a birth control method because

of the required disclosure, the State’s effort plainly in-

creases the health risk to the woman. Moreover, this

health risk is far easier to document than the appellants’

speculative emotional trauma to a woman caused by non-

disclosure of the possible loss of a fertilized egg, which

no one can even say ever existed.*' Thus, the State’s in-

terest, which it has chosen not to defend in this appeal, is

not a compelling one.

But even assuming the woman’s emotional health were

a compelling interest of the State in this context, dis-

closure that invites every patient to believe that she may

have an “abortion” if she uses a particular method of

birth control is not reasonably related to that goal be-

cause it does not comport with accepted medical practices.

Cf., Cavanagh & Comas, Spontaneous Abortion, in Obstet-

rics and Gynecology 378 (D. Danforth ed. 1982) (physi-

cians should describe “spontaneous abortion” to patient as

“miscarriage” and avoid use of term “abortion” which

31 See, e.g., Cates, Smith, Rochat & Grimes, Mortality From Abor-

tion and Childbirth: Are The Statistics Biased?, 248 J.A.M.A. 192

(1982); Rubin, McCarthy, Shelton, Rochat & Terry, The Risk of

Child Bearing Re-Evaluated, 71 Am. J. Pub. Health 712 (1981). -

upsets patients.) As we explained in the context of Penn-

svlvania’s informed consent statute, not every patient re-

quires disclosure of certain information. Moreover, some

women will take offense at the State’s way of characteriz-

ing the birth contro] process, and may be particularly

offended to have such a description coming from the mouth

of their personal physician. See City of Akron, 462 U.S.

at 445.

Nor is the requiremen* that the physician describe a

birth contro] method in terms of “fetal death” consistent

with accepted medical practice. As explained, medicine

defines a fetus as being at least 8 weeks old, see p. 30,

supra. See also Kaiser, Fertilization and the Physiology

and Development of Fetus and Placenta, in Obstetrics

and Gynecology 317 (D. Danforth ed. 1982) (implanted

blastocyst is 0.36 x 0.31 mm). Moreover, describing a

fertilized egg as having “died” may not be consistent

with many physician’s concept of death. Compare City of

Akron, 462 U.S. at 444. Thus, contrary to appellants’

claim (Br. at 16), this law does not prevent deception by

the physician; instead, it carries a very serious potential

for misleading and frightening unsuspecting women.

Finally, Section 11/d) is not a carefully tailored pro-

vision. No law that can be fairly construed to discourage

every woman from using the most effective methods of

available birth control is even rationally related, much

less carefully tailored, to the state’s legitimate interest in

protecting maternal health. Accordingly, this provision is

unconstitutional.

* There is nm additional basis for holding this law unconstitu-

tional. Section 11(d)’s vagueness directly violates the physician’s

right to due process. If the State chooses to employ its criminal

laws to regulate physician-patient relationships, it must act with

greater precision than it has here. No person of ordinary intelli-

gence could do anything but guess as to what disclosures are re-

C. The IHinois and Pennsylvania Provisions Which

Require Physicians to Use the Abortion Technique

That Will Most Likely Preserve Fetal Life are

Unconstitutional.

Section 3210(b) of Pennsylvania’s 1982 Abortion Con-

trol Act, 18 Pa. Cons. Stat. Ann. § 3210(b) ( Purdon

1983), requires the physician who performs an abortion

on a fetus known to be viable to use the technique most

likely to preserve fetal life unless, in the good-faith judg-

ment of the attending physician, that method would pose

a “significantly greater medical risk” to the mother’s life

or health. The statute expressly excludes potential psy-

chological or emotional effects from the physician’s con-

sideration when judging the risk to the woman’s life or

health. Failure to comply with this section is a third

degree felony.

Section 6(4) of the Illinois Abortion Law of 1975, IIl.

Rev. Stat. ch. 38, 7 81-26(9) (1983), requires a physician

who knows that there is a “possibility” of sustained sur-

vival by the fetus to employ the same professional skill to

preserve the life and health of the fetus that he would be

required to exercise toward a fetus intended to be born.

Section 6(1) imposes the same requirement of fetal care

on the physician, but imposes a harsher criminal penalty

if the fetus is “known to be viable.” *

quired of him by Section 11(d) in prescribing most birth control

methods. Colaut:i v. Franklin, 439 U.S. at 400-401.

The claims by the appellants and the United States that the phy-

sician “is free to get the message across in any way he chooses”

simply highlights the uncertainty of the Illinois law. If the phy-

sician knows <hat the birth control method is an “abortifacient,” but

attempts “to get the message across” without actually mentioning

“fetal death.” which is the precise definition contwined in the statute,

it is not at all clear why a jury could not find that such action con-

stituted a “reckless” failure to inform the patient that the pre-

scribed method is an abortifacient as statutorily defined. Compare

Colautti ». Franklin, 439 U.S. at 390-394.

33 The Illinois provisions have been interpreted to require the

physician to choose the method of abortion most likely to promote

fetal survival. Wynn v. Scott, 449 F. Supp. 1302, 1321 (N.D. IIL.

1. Medical Background. A brief discussion of the med-

ical practices concerning second and third trimester abor-

tions is a necessary backdrop to an analysis of the con-

stitutionality of these laws. “Viability” of the fetus can

occur anytime between 22 weeks and 28 weeks after the

last menstrual period, although the survival rates for the

fetus are “meager” until at least 25 weeks. Hack, Fan-

aroff & Merkatz, The Low-Birth-Weight Infant—Evolu-

tion of a Changing Outlook, 301 New Eng. J. Med. 1162,

1164 (1979); Philip, Little, Polivy & Lucey, Neonatal

Mortality Risk for the Eighties: The Importance of Birth

Weight/Gestational Age Groups, 68 Pediatrics 122, 124-

125 (1981). See also City of Akron, 462 U.S. at 457 n.5

(O’Connor, J., dissenting).

There are two primary abortion procedures during the

period surrounding viability—saline amnioinfusion and

prostaglandin instillation. Both procedures involve injec-

tions by the physician into the amniotic sac surrounding

the fetus which cause the uterus to contract and the fetus

to be discharged. There are, however, two additional com-

mon methods of abortion—hysterotomy, which is much

like a “mini” cesarean section for childbirth, and dilata-

tion and evacuation (“D&E”), which involves the use of

forceps to evacuate the fetus and suction to ensure that

the cavity is empty.** Like every medical procedure, these

techniques carry their own risks for the mother and have

their own effects on the fetus.”

1978), aff'd, 599 F.2d 193 (7th Cir. 1979). In addition, both statutes

have been interpreted not to require the physician to increase the

“risk to the woman[’s health] to save the fetus.” 449 F. Supp. at

1321.

* Grimes & Cates, Dilatation and Evacuation, in Second Trimester

Abortion 127-128 (G. Berger, W. Brenner & L. Keith eds. 1981);

Anderson, Gibson & Hobbins, Obstetric Management of the High

Risk Patient, in Medical Complications During Pregnancy 102 (G.

Burrow & T. Ferris 2d ed. 1982).

*° To simplify matters, we will focus on the four methods of abor-

tion described in the text because they are the most commonly used.

In fact, there are other methods. For example, prostaglandin can

Saline amnioinfusion does create a small risk of hemor-

rhage and infection to the woman, particularly if the

abortion is only partially complete.** In addition, if the

procedure is done incorrectly and the sodium solution gets

into the vascular system, it can cause hypernatremia (an

excessive increase in the blood sodium level), which in

rare instances can be quite serious and even cause death

to the mother.*? Saline amnioinfusion is contraindicated

for women with cardio-vascular disease or severe anemias.

R. Bolognese & S. Corson, Interruption of Pregnancy—A

Total Patient Approach 126 (1975). Saline amnioinfusion

is also very likely to result in fetal death; two scientists

reported live births at a rate of much less than one per

100 abortions for this procedure. Stroh & Hinman, Re-

ported Live Births Following Induced Abortion: Two and

One-Half Years’ Experience in Upstate New York, 126

Am. J. Obstetrics & Gynecology 83 (1976).

Use of prostagiandins also carries a small risk of hem-

orrhage and infection, particularly if the placenta is not

be administered vaginally or even intravenously; also urea e2n be

used instead of, or with, prostaglandins; and a hysterectomy 2.80

has been performed in extraorcinary circumstances. See Bydgeman,

Prostaglandin Procedures, in Second Trimester Aborticn 89, 95-99

(G. Berger, W. Brenner & L. Keith eds. 1981); Kerenyi, /ntra-

Amniotic Techniques, in Abortion and Steriiization: Medical and

Social Aspects 369 (J. Hodgson ed, 1981). Each method, of course,

36 Kerenyi, Hypertonic Saline Instillation, in Second Trimester

Abortion 83 (G. Berger, W. Brenner & L. Keith eds. 1981).

37 7d. It is this risk that may make saline amnioinfusion slightly

less safe to the mother than use of prostaglandins. Grimes & Cates,

Complication from Legally-Induced Abortions: A Review, 34 Obstet-

ricat & Gynecolegical Surv. 177, 188 (1979). But see Bygdeman,

Prostaglandin Procedures, in Second Trimester Abortion 89, 95-99

(G. Berger, W. Brenner & L. Keith eds. 1981) (indicating that

prostaglandin caused both more complications and more major com-

plications than saline amnioinfusion). If the saline injection is

properly administered, however, the risk to the mother should be

about the same with either procedure.

expelled soon after the fetus.** There is, however, no risk

of hypernatremia. Prostaglandin instillation does have

side effects, such as nausea, vomiting and diarvhea.*” Use

of prostaglandin instillation is not recommended for pa-

tients with bronchial asthma, other pulmonary problems,

glaucoma or epilepsy.“ Prostaglandin instillation is also

quite likely to cause fetal deati:, but less so than a saline

injection; there can be as many as 3 or 4 live births per

100 abortions. Cates & Grimes, Morhidity and Mortality

of Abortion in the United States, in Abortion and Sterili-

zation 156, 164 (J. Hodgson ed. 1981).

As this Court noved in City of Akren, D&E has become

the abortion procedure of choice in the early portion of

the second trimester. 462 U.S. at 436. But D&E can be

used as late as 24 weeke.** D&E is generally accepted as

38 Kerenyi, Intra-Amniotic Techniques, in Abortion and Steriliza-

tion: Medical and Social Aspects 359, 367 (J. Hodgson ed. 1981).

39 Td.

* Hern, Mid-Trimester Abortion, in Obstetrics & Gynecology

Ann. 375 (1981) ; Robins & Surrago, Alternatives in Mid-Trimester

Abortion Induction, 56 Obstetrics & Gynecology 716 (1980).

41 See American College of Obstetricians & Gynecologists, Tech.

Bull. No. 56, Methods of Midtrimester Abortion 4 (Dec. 1979); Lee

& Baggish, Live Birth as a Complication of Second Trimester Abor-

tion Induced with Intra-Amniotic Prostaglandin, 13 Advances in

Planned Parenthood 7 (1978); Stubblefield, Noftolin, Frigoletto &

Ryan, Laminaria Augmentation of Intra-Amniotic PGF2 For Mid-

trimester Pregnancy Termination, 10 Prostaglandins 413, 420

(1975). \

*2 Stubblefield, Midtrimester Abortion by Curettage Procedures:

An Overview, in Abortion and Sterilization: Medical and Social

Aspects 280 (J. Hodgson ed. 1981); Kleiman, When Abortion Be-

comes Birth: A Dilemma of Medical Ethics Shaken by New Ad-

vances, N.Y. Times, Feb. 15, 1984, at Bl, col. 1; ACOG, Tech. Bull.

No. 56, Methods of Midtrimester Abortion (Dec. 1979); Rooks &

Cates, Emotional Impact of D&E Vv. Instillation, 9 Fam. Plan. Persp.

276-277 (1977). The primary risk caused by later uses of D&E is

perforation of the cervix or uterus. Mandelmian & Kerenyi, Medical

a very safe abortion method and it is also likely to cause

the woman much less emotional trouble than the saline

amnioinfusion or prostaglandin methods, because it al-

lows the woman to avoid the long and painful labor asso-

ciated with the other procedures.** As the Court pointed

out in Planned Parenthood v. Ashcroft, however, D&E is

absolutely fatal to the fetus. 462 U.S. at 483 n.7.

An abdominal hysterotomy is a major surgical proce-

dure and is not accepted as a method of pregnancy termi-

nation if any other method is available. J. Pritchard &

P. MacDonald, Williams Obstetrics 481-482 (17th ed.

1985). A hysterotomy does no specia! damage to the

fetus, however, and therefore, as a methed of pregnancy

termination, it provides the greatest likeiihood of fetal

survival. See Colautti v. Franklin, 439 U.S. at 398.

2. Infringement. Against this background, it is plain

that each of the three statutes interferes with the physi-

cian’s ability to practice medicine on behalf of the patient.

With respect to the Pennsylvania law, this Court recog-

nized, even before Roe v. Wade, supra, that the physi-

cian’s obligation to preserve his patient’s health required

the physician to consider both the psychological as well as

physica! well-being of the patient and that judgments con-

cerning both always precede every medical procedure.

United States v. Vuitch, 402 U.S. 62, 72 (1971).* Thus,

for the State to declare, as Pennsylvania has in enacting

and Surgical Aspects of Elective Termination, in Rovinsky &

Guttmacher’s Medical, Surgical and Gynecological Complications of

Pregnancy 698 (S. Cherry, R. Berkowitz & N. Kase eds. 1985).

43 Grimes & Cates, Dilatation and Evacuation, in Second Tri-

mester Abortion 128 (G. Berger, W. Brenner & L. Keith eds. 1981).

44 The importance of the physician’s ability to consider all health

consequences, including emotional and psychological components, has

been repeatedly emphasized by the Court since Roe v. Wade. See,

e.g., Roe v. Wade, 410 U.S. at 153; Doe vy. Bolton, 410 U.S. at 196:

Beal v. Doe, 432 U.S. 438, 442 (1977); Colautti v. Franklin, 439

U.S. at 400; H. L. v. Matheson, 450 U.S. at 397-398, 411.

Section 3210(b), that the physician must ignore emotional

and psychological considerations strikes at the core of the

physician’s duty to provide total treatment for the pa-

tient.*°

In addition, the Court already has held that the physi-

cian’s primary duty must always be to his patient, the

woman. Colautti v. Franklin, 439 U.S. at 400-4061. Here

Pennsylvania requires the physician to consider primarily

the fetus and be concerned about the patient, only if her

physical well-being is “significantly” affected. This, of

course, directly regulates, and unquestionably burdens, the

physician’s provision of medical care to the patient.

Both Sections 6/1) and 6(4) of the Illinois law also

directly infringe upon the practice of medicine. They im-

pose upon physicians a burden of care toward the fetus

that arises at the time of the abortion procedure itself.

While the statutes have been interpreted to give primary

concern to the mother’s health (see note 33, supra), they

nevertheless affect the decisionmaking process at a critical

time for the patient and require the physician to follow

statutory criteria rather than professional judgment in

deciding upon a course of treatment. In addition, all

three provisions attach criminal liability to the determina-

tion of “viability” which holds great potential for chilling

the physician’s medical practices. Colautti v. Franklin,

439 U.S. at 395. Accordingly, all three statutes infringe

upon the fundamental privacy right.

3a. Compelling Interest Analysis. To withstand con-

stitutional scrutiny, therefore, each provision must be con-

#5 See, e.g., Mandelman & Kerenyi, Medical and Surgical As-

pects of Elective Terminat.ons, in Rovinsky & Guttmacher’s Medi-

cal, Surgical and Gynecological Complications of Pregnancy 698 (S.

Cherry, R. Berkowitz & N. Kase eds. 1985); Laufman, Surgical

Judgment, in Christopher’s Textbook of Surgery 1459 (L. Davis

9th ed. 1968); Nehemiah, Psychological Aspects of Surgical Prac-

tice, in Surgery: A Concise Guide to Clinical Practice 9 (G. Nardi

& G. Zunidema 3d ed. 1972).

sistent with accepted medical practice and be carefully

tailored to the states’ compelling health interests. Under

these standards, none of these state laws is constitutional.

On the merits, the Court can summarily dispose of Sec-

tion 6(4) of the Illinois ..oortion Act. The provision is

virtually identical to a Pennsylvania statute declared un-

constitutional by this Court in Colawtti v. Franklin, 439

U.S. at 379-380. By requiring the physician to take into

account the health of the fetus prior to actual viability,

the state law seeks to protect fetal life before the State

has any compelling interest in that purpose under this

Court’s prior rulings. Roe v. Wade, 410 U.S. at 163.

Moreover, imposing duties that distract from the care of

the woman is not reasonably relateu to the State’s inter-

est in maternal health. Accordingly, the Illinois provision

is patently unconstitutional.”

b. Pennsylvania’s Section 3210(b) is almost as easily

disposed of by this Court on the basis of its prior deci-

sions. Although the statute is properly aimed at preserv-

ing fetal life after viability, it is not reasonably related

to the State’s permissible goals because it is not consistent

with accepted medical practice. First, the statute elimi-

nates as a legitimate consideration the mother’s emotional

health. The absolute elimination of emotional considera-

tions invalidates this statute in light of the Court’s re-

peated insistence that “health” requires consideration of

everything relevant to a patient’s condition. See notes 44

and 45, supra.

Moreover, it will be very difficult in any given case for

the physician in choosing among abortion methods to make

**.The abortion method of choice for all pre-viability abortions

during the second trimester is or is fast becoming D&E because

of the advantages of that procedure to the patient. See p. 37,

supra. Accordingly, to the extent Section 6(4) would impose any

restriction upon the phvysician’s decision to choose D&E prior to

viability, it would be inconsistent with accepted medical practices

and therefore unconstitutional for that additional reason.

the “good faith” judgment Section 3210(b) commands.

All methods of abortion at this stage of pregnancy carry

risks to the mother, and all but one ordinarily cause the

fetus to die. instead of allowing the mother and physi-

cian to evaluate these risks and make a judgment about

how best to proceed, Pennsylvania requires the physician

to make the treatment decision on the basis of a trade-off

between maternal and fetal health, which this Court has

declared impermissible in both Colautti v. Franklin, 439

U.S. at 400, and Planned Parenthood vy. Ashcroft, 462

U.S. at 485 n.8 ( Powell, J.).

The State’s analysis in support of this provision is

wholiy inadequate. The Pennsylvania Attorney General

attempts to rewrite the statute so that the physician is

not required to favor fetal health over maternal health.

By reading the word “significantly” out of the statute,

Pennsylvania attempts to avoid the statute’s clear incon-

sistency with accepted medical practices. Colautti v.

Franklin, 439 U.S. at 400; Planned Parenthood v. Ash-

croft, 462 U.S. at 485 n.8 ( Powell, J.). Concededly, the

Court has an obligation to avoid unconstitutional con-

structions of state law. See, e.g., Planned Parenthood v.

Danforth, 428 U.S. at 64; Bellotti v. Baird, 443 U.S. at

645 & n.25; H.L. v. Matheson, 450 U.S. at 406, 407 &

n.14, 412. Nevertheless, it must give the statute a “fair”

interpretation, and reading a word completely out of the

' statute, as Pennsylvania proposes, violates a fundamental

canon of statutory construction. See, e.g., McDonald v.

Thompson, 305 U.S. 263, 266 (1938); D. Ginsberg &

Suns V. Popkin, 285 U.S. 204, 208 (1932) .‘7 Accordingly,

Section 3210(b) is unconstitutional.

*? Even if the Court were to accept the Pennsylvania Attorney

General’s construction of Section 3210(b), it would not preserve

the constitutionality of this provision. As we explain later, any

statute that imposes a duty on the physician concerning the life of

the fetus will necessarily increase the risk to the woman in violation

of the accepted medical practice of first protecting the life and

health of the mother. See pp. 42-43, infra.

ec. Although Sections 6(4) and 3210(b) can be readily

disposed of on the basis of prior decisions of this Court,

Section 6(1) poses the basic issue of whether the State,

through its criminal laws, can impose upon the physician,

who has decided that a post-viability termination of the

woman’s pregnancy is necessary to her life or health, an

independent duty to the fetus that arises during the preg-

nancy termination process.

Anici submit that the State’s intrusion into the physi-

cian’s exercise of judgment in this situation cannot be

justified because the physician’s primary duty must be to

protect the life and health of the mother. Section 6(1)

only applies to terminations of pregnancy after the fetus

is believed to be viable.** Thus, the termination must be

necessary to the mother’s life or health. One of the main

textbooks in the field lists among the “commonly ac-

cepted” conditions that warrant a therapeutic abortion:

persistent heart disease, advanced hypertensive vascular

disease and invasive carcinoma of the cervix. J. Pritchard

& P. MacDonald, Williams Obstetrics 477 (17th ed.

1985); Nesbitt & Abdul-Karim, Coincidental Disorders

Complicating Pregnancy, in Obstetrics and Gynecology

511 (D. Danforth ed. 1982). Obviously, these are condi-

tions that warrant the physician’s immediate and domi-

nant concern. See H. Barber & E. Graber, Surgical Dis-

ease in Pregnancy 697 (1974) (physician’s primary con-

cern must be for the mother who has cancer).

It is irrational—and certainly not tailored to any

health concerns—for the State to require the physician to

give weight to fetal survival in deciding which of the

three most common abortion methods to choose when the

48 No one can “know” when a fetus is viable. The most that a

physician could say is that to “a reasonable medical certainty” a

fetus has become viable. We agree with the court of appeals that

the failure of the state legislature in 1975 to make clear that the

viability determination must be made by the physician is fatal to

this provision. See Colautti v. Franklin, 439 U.S. at 391-393.

mother’s health or even life is at such extreme risk. All

three common methods are extremely likei,, to cause the

death of the fetus. See pp. 35-38, supra. This Court al-

ready has recognized that “[m]any” post-viability abor-

tions will “be emergency operations” in which the physi-

cian will have to make a very quick judgment concerning

which abortion method to choose in light of the mother’s

particular life or heaith threatening condition and the

physician’s own medical skills. Planned Parenthood v.

Ashcroft, 462 U.S. at 485 ( Powell, J.). As amici have

already explained, each abortion method carries its own

particular risks and those risks must be evaluated in the

context of each patient’s particular condition. See pp. 35-

38, supra. Amici submit that these considerations alone

should guide the physician’s determination; otherwise,

there will always be an increased risk of harm to the

mother.

This preference for the mother’s health, which this

Court has clearly approved, Colautti v. Franklin, 439 U.S.

at 400-401; Planned Parenthood vy. Ashcroft, 462 U.S. at

485 (Powell, J.), is particularly warranted because no

abortion method even minimally advances the State’s in-

terest in fetal health. Except for a hysterotomy which

causes a “significantly” greater risk, however defined, to

the mother, all other methods will cause fetal death in al-

most all cases. The fact that prostaglandin instillation is

less likely to cause fetal death than saline amnioinfusion

(Colautti v. Franklin, 439 U.S. at 399) should not mask

the much more important fact that both methods are ex-

tremely likely to result in the death of the fetus. There-

fore, it makes no medical sense to inject this consideration

as a decisive factor into the physician’s calculations in

choosing how best to treat a seriously ill woman."

** Appellants’ facile characterization (Br. at 26, 41) of Section

6(1) utterly ignores all medical reality. They assert that the statute

mercly imposes a duty on a physician, when all other considerations

are equal, to decline to choose an abortion method that is injurious

Amici do not mean to suggest that the State cannot

enact laws to serve its compelling interest in the survival

of the fetus. The State can protect that interest by re-

quiring the physician who performs an abortion after via-

bility to certify that the abortion was necessary to protect

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

164, and by requiring hospitals, when appropriate, to take

measures, such as use of a second physician, to assist the

infant who survives the termination of pregnancy. Ash-

croft, 462 U.S. at 485-486. These measures are tailored

to the State’s compelling interest and do not interfere

with the physician’s judgment at a critical time in the

woman’s treatment. Because Section 6/1), by contrast, is

clearly inconsistent with sound medical practice, it is

not reasonably related to the State’s permissible health

goals and is thus unconstitutional.

D. Pennsylvania’s Second-Physician Requirement Must

Contain An Exception For Emergency Abortions.

Section 3210(c) of Pennsylvania’s 1982 Abortion Con-

trol Act, 18 Pa. Cons. Stat. Ann. § 3210(c) (Purdon

1983), requires the mother’s attending physician to ar-

range for a second physician to be in attendance if the

chosen method of abortion “does not preclude the possi

bility of the child surviving the abortion. .. .”. The purpose

of the second physician is to take control of the child and

become his or her primary provider of care.

In Planned Parenthood v. Ashcroft, 462 U.S. at 485-

486, this Court upheld a provisicn in the Missouri abor-

tion statute that imposed a somewhat similar second-

physician requirement. The Court, however, required that

the statute contain a clear exception to the requirement of

a second physician whenever the abortion was an emer-

gency procedure. When the mother’s health is at risk, the

to the fetus. What this assumes is that all other considerations will

be equal. But this is not consistent with medical practice. The

physician’s concern is and should be with the mother until after

the mother’s life or health are no longer in jeopardy. Planned

Parenthood v. Ashcroft, 462 U.S. at 485 (Powell, J.).

attending physician’s concern should be exclusively on the

mother and not be distracted by the need to obtain a

second physician before going ahead with the needed medi-

cal care. Jd. For the reasons stated by the Court in

Ashcroft, amici strongly support the importance of an

emergency exception. Thus, Section 3210(c) is only con-

stitutional if the statute somewhere contains a clear emer-

gency exception.

Pennsylvania asserts that the affirmative defense provi-

sion in its statute, § 3210/2), which bars conviction if the

physician concluded in good faith that the abortion was

necessary to preserve the mother’s life or health, can be

interpreted as an emergency except.on to the second-physi-

cian requirement. But, Pennsylvania’s law is not as clear

as Missouri’s statute in Ashcroft; Section 3210(a) says

nothing specifically about the second physician and it is a

defense to a criminal prosecution for performing an abor-

tion on a post-viable fetus and not part of the second-

physician requirement itself. Accordingly, amici submit

that the court of appeals properly held that the provision

was insufficiently clear and thereby correctly required a

more carefully drafted emergency exception.

E. Pennsylvania’s Abortion Reporting Requirement Is

Unconstitutional.

Section 3214 of Pennsylvania’s 1982 Abortion Control

Act, 18 Pa. Cons. Stat. Ann. § 3214 (Purdon 1983), re-

quires every physician who performs an abortion to re-

port certain information to the State. Within a month

of the procedure, the physician must submit a report

that specifies the referring physician, agency or service;

the facility where the abortion was performed; the poiit-

ical subdivision and state in which the woman resides;

her age, race and marital status; the number of her

prior pregnancies; the date of her last menstrual

period; the “probable gestational age of the unborn

child”; the type of abortion procedure performed; any

complications; the “length and weight of the aborted

unborn child when measurable”; the basis for any judg-

ment that the abortion was required because of a med-

ical emergency; and the basis for the physician’s deter-

mination that the fetus was not viable or that a post-

viability abortion wes necessary to preserve the mother’s

life or health. 18 Pa. Cons. Stat. Ann. §§ 3211, 3214

(Purdon 1983). Failure to provide this information is a

first degree misdemeanor; in addition, failure to provide

information about viability constitutes “unprofessional e«

duct,” and will result in at least a three-month suspen-

sion of the physician’s medica] license.

1. Infringement. This Court already has held that a

state can require physicians to supply it with routine

reports concerning each abortion because such reports

ordinarily constitute “minor” regulation of the physi-

cian’s practices and the reports reasonably further the

state’s interest in health by providing the state with

aggregate data regarding various abortion procedures.

Planned Parenthood v. Denforth, 428 U.S. at 80. But

this Court in Danforth made clear that such reports

could not regulate the physician’s judgment or be too

burdensome, id. at 80-81, and reiterated this point in

City of Akron, 462 U.S. at 430 n.13 (recordkeeping is

permissible “if not abused or overdone. . .””).

Amici do not object to reporting requirements if they

are restricted to factual material about each abortion

which are carefully tailored to a legitimate state goal.

Physicians routinely fill out reports for states, such as

death certificates and child abuse and drug abuse reports.

M. Lewis & C. Warden, Law and Ethics in the Medical

Office Including Bioethical Issues 56-58 (1983). Unlike

the routine forms required in those contexts, Pennsyl-

vania demands that a physician explain in writing the

basés for his judgment about the viability of a fetus and

his choice of abortion procedure. These reports are there-

fore not limited to routine factual materials. Moreover,

the physician must supply this information without the

slightest idea what use the State may make of it and

without being given guidance regarding the level of de

tail which the State expects or wants.

Thus, the State’s requirement seems intended to dis-

courage physicians from performing abortions and will

have that effect by requiring them to devote time to

drafting reports, under vague criteria, that could better

be spent treating patients. J.S. App. at 79a-8la; Cf.,

Parham v. J.R., 442 U.S. 584 (1979) ‘psychiatrist time

better spert practicing medicine than testifying at com-

mitment hearings). In addition, the State’s requirement

will increase the cost to a woman who has an abortion

‘S$ opposed to any other medical procedure; the abortion

procedure is uniquely burdened by the State’s reporting

requirement of a physician’s professional “judgments.”

2. Compelling Interest Analysis. Pennsylvania’s re-

porting provision is invalid because it is not carefully

tailored to a compelling state interest. The Pennsylvania

Attorney General asserts that these reports could be a

source of data that could be used for research. (Pa. Br.

at 60-61.) But the statute nowhere mentions how these

reports will be used by the State, and no legislative his-

tory is cited to show that the legislature intended the

judgmental portions of the reports to be used for any

purpose other than to burden the physician. Nor does

the Attorney General attempt to suggest, even in thecry,

how unstructured answers describing professional judg-

ments underlying 2 physician’s treatment decisions can

be used as a data base for serious scientific research by

the State or anyone else.

In sum, when a state seeks to force physicians to re-

pert on the basis for the exercise of their medical judg-

ment, the state must show that its use of reported

information is carefully tailored to the state’s interest

in maternal health, and Pennsylvania cannot satisfy that

requirement because of the vagueness of its requirement

and the lack of any rational connection, much less a care-

fully tailored one, to the state’s interest in advancing

maternal health.

CONCLUSION

For the reasons stated above, the judgments of the

courts of appeals should be affirmed.

Of Counsel:

KirK B. JOHNSON

AMERICAN MEDICAL

ASSOCIATION

535 N. Dearborn Street

Chicago, Illinois 60610

(312) 645-4600

R. MICHAEL MILLER

AMERICAN ACADEMY OF

FAMILY PHYSICIANS

1740 West 92rd Street

Kansas City, Missouri 64114

(816) 333-9700

STEPHAN E. LAWTON

PIERSON, BALL & DowD

1200 - 18th Street, N.W.

Washington, D.C. 20036

(202) 331-8566

Joru I. KLEIN

ONEK, KLEIN & FARR

2500 M Street, N.W.

Washington, D.C. 20037

(202) 775-0184

JOSEPH A. KEYES, JR.

ASSOCIATION OF AMERICAN

MEDICAL COLLEGES

One Dupont Circle, N.W.

Washington, D.C. 20036

(202) 828-0555

ANN E, ALLEN

AMERICAN COLLEGE OF

OBSTETRICIANS AND

~ GYNECOLOGISTS

600 Maryland Avenue, S.W.

Suite 300-East

Washington, D.C. 20024

(202) 638-5577

August 1985

Respectfully submitied,

BENJAMIN W. HEINEMAN, JR.*

CARTER G. PHILLIPS

VINCENT F. PRAvA

1722 Eye Street, N.W

Washington, D.C. 20006

(202) 429-4000

NEWTON N. MINOW

JACK R. BIERIG

One First National Plaza

Chicago, Illinois 60603

(312) 853-7000

SIDLEY & AUSTIN

Counsel for the Amici Curiae

* Counsel of Record

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.